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2015 DIGILAW 424 (UTT)

Sanjay Kumar v. Jagdish Chandra

2015-09-04

ALOK SINGH

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JUDGMENT : Alok Singh, J. 1. Both these writ petitions are inter connected and have been filed assailing the same and one impugned order dated 25.09.2004 passed by Additional Chief Revenue Commissioner, Circuit Nainital, Uttarakhand. Therefore, with the consent for the learned counsel appearing for the parties, both the petitions are heard together and are being disposed of by this common judgment. 2. Admitted facts of the present case, inter alia, are that Sri Hira Lal son of Jas Ram was sirdar of the land of khasra no. 505 of village Basani paragana Bhanwar Tehsil Haldwani District Nainital (hereinafter called as property in question); vide order dated 22.03.1973, Sri Hira Lal was declared as bhumidhar with transferable rights; possession of Gopal Singh, son of Pratap Singh and Diwani Ram, son of Madan Ram was earlier recorded in the Revenue record, however, vide order dated 15.02.1973 possession of Gopal Singh and Diwani Ram was directed to be deleted and consequently deleted; neither Gopal Singh and Diwani Ram nor their LRs ever challenged order dated 15.02.1973, whereby entries in the revenue record about their possession was deleted; name and possession of Sri Hira Lal remained recorded in the revenue record over the property in question till his death and after his death, name and possession of Sri Jagdish Chandra @ Jagdish Lal respondnet no. 1 in Writ Petition No. 1316 of 2004 (M/S) remained recorded and after his death, names and possession of legal heirs of respondent no. 1 are recorded. 3. To understand the controversy, facts and parties of Writ Petition No. 1316 of 2004 (M/S) are being referred hereinafter. 4. The case of petitioners in both the writ petitions is that Hira Lal has executed one registered sale deed on 19.04.1973 in favour of respondent nos. 2 and 3 of the property in question; vendees i.e. respondent nos. 2 and 3 applied for mutation pursuant to the sale deed dated 19.04.1973, however, Diwani Ram and Gopal Singh, fathers of the petitioners objected the mutation saying Diwani Ram and Gopal Singh were in actual possession, whereupon no mutation could be directed and Class, Bhanwar, Haldwani, wherein Jagdish Chandra son of Hira Lal respondent no. 1 was impleaded as defendant no. 2, while petitioners were impleaded as defendant nos. 3 to 7; in a suit, plaintiffs i.e. respondent nos. 2 and 3 and defendant nos. 1 was impleaded as defendant no. 2, while petitioners were impleaded as defendant nos. 3 to 7; in a suit, plaintiffs i.e. respondent nos. 2 and 3 and defendant nos. 3 to 7 entered into compromise to the effect that out of total 47 bighas 7 biswas land purchased, vendees respondent nos. 2 and 3 shall be bhumidhar of only 5 bighas of land and Defendant nos. 3 to 7 [petitioners of Writ Petition No. 1316 of 2004 (M/S)] being unauthorized occupants of land in question shall be bhumidhar of the remaining land measuring of 42 Bighas 7 biswas; compromise was accepted by the Assistant Collector, 1ultimately mutation application was dismissed; thereafter, Kedar Datt and Shankar Datt, respondent nos. 2 and 3 (fathers of the petitioners of WPMS No. 72 of 2005) have filed declaratory suit under Section 229-B being Suit No. 22/14 of 1977-78 in the Court of Assistant Collector, 1st st Class vide order dated 04.05.1981, however, mutation/Amaldaramad could not be carried out in the Revenue record pursuant to the compromise decree, therefore, petitioners have moved an application to carry out Amaldaramad in the Revenue record pursuant to the compromise decree; however, application so moved by the petitioners was dismissed by the Assistant Collector, 1st Class; first appeal by the petitioners was allowed; respondent nos. 2 and 3 have assailed order passed by the appellate Court in Revision No. 84 of 1997-98; however, learned Additional Chief Revenue Commissioner was pleased to allow the revision setting aside the order passed by the Appellate Court; in both the petitions order dated 25.09.2004 passed by Revisional Court is under challenge. 5. I have heard Mr. J.C. Belwal, learned counsel for the petitioners in Writ Petition No. 72 of 2005 (M/S), Mr. Siddhartha Sah, learned counsel for the petitioners in Writ Petition No. 1316 of 2004 (M/S) and Mr. M.C. Kandpal, learned Senior Counsel assisted by Mr. Chitrarth Kandpal, learned counsel for the respondent nos. 1/1 to 1/5 and have carefully perused the record. 6. It is important to mention herein that neither certified copy of plaint of the case no. 22/14 of 1977-78 nor certified copy of the compromise dated 04.05.1981 nor certified copy of the order passed on the alleged compromise dated 04.05.1981 is placed on record. Moreover, perusal of the typed copy of alleged compromise dated 04.05.1981 would reveal that it was signed by only plaintiffs i.e. respondent nos. 22/14 of 1977-78 nor certified copy of the compromise dated 04.05.1981 nor certified copy of the order passed on the alleged compromise dated 04.05.1981 is placed on record. Moreover, perusal of the typed copy of alleged compromise dated 04.05.1981 would reveal that it was signed by only plaintiffs i.e. respondent nos. 2 and 3 of Writ Petition No. 1316 of 2004 (M/S) and one by Gopal Singh, father of the petitioner nos. 2 to 6 and it does not bear the signature of either Jagdish Chandra, who was defendant no. 2 or his counsel nor it is signed by counsel or authorized representative of State Government or Gram Sabha. 7. Alleged compromise was accepted on 04.05.1981, however, no application was ever moved to carry out Amaldaramad in the Revenue record pursuant to the compromise decree for long 14 years and for the first time, application for Amaldaramad was moved on 30.08.1995. 8. It is important to note that no objection was ever raised by the petitioners of both the petitions against the recording of the name and possession of Jagdish Chandra in the Revenue record. Nor order dated 15.02.1973 was ever challenged whereby possession of Gopal Singh and Diwani Ram was deleted from the revenue record. No irrigation receipt or lagan receipt was produced by the petitioners to say that, in fact, petitioners have paid irrigation charges or land revenue. No cogent evidence is produced to say that petitioners are in possession. In my considered view had they been in possession, they could have produced such receipts or other materials. To the contrary revenue entries are supporting the title and possession of respondent no. 1. 9. There is a strong presumption in favour of long standing entries in the revenue record. Such presumption can be rebutted only by way of cogent evidence. In the present case, no cogent evidence was produced by either of the petitioners to prove that earlier Diwani Ram and Gopal Singh were in possession and after 04.05.1981, petitioners of both the petitions are in possession. Therefore, in my humble opinion, entries in favour respondent no. 1 could not be rebutted. In the present case, no cogent evidence was produced by either of the petitioners to prove that earlier Diwani Ram and Gopal Singh were in possession and after 04.05.1981, petitioners of both the petitions are in possession. Therefore, in my humble opinion, entries in favour respondent no. 1 could not be rebutted. As per entries in the Revenue record, first of all, Hira Lal remained Bhumidhar in possession of the property w.e.f. 22.03.1973 till his death and thereafter Jagdish Chandra respondent remained in possession till his death and thereafter LRs of Jagdish Chandra are in possession without any interruption. 10. Section 210 of the U.P.Z.A. & L.R. Act, 1950 reads as under: “210. Consequence of failure to file suit under Section 209- If a suit for eviction fro any land under Section 209 is not instituted by a bhumidhar or asami, or a decree for eviction obtained in any such suit is not executed within the period of limitation provided for such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall- (a) where the land forms part of the holding of a bhumidhar with transferable rights, become a bhumidhar with a transferable rights of such land and the right, title and interest of an asami, in such land shall be extinguished; (b) where the land forms part of the holding of a bhumidhar with non-transferable rights, become a bhumidhar with non-transferable rights, become a bhumidhar with non-transferable rights and the right, title and interest of an asami, if any, in such land shall be extinguished; (c) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, become an asami of the holding from year to year.” 11. The language of Section 210 of the U.P.Z.A. & L.R. Act is unambiguous, plain and simple. As per Section 210 of the Act if suit for possession is not filed within a period of limitation provided for institution of a suit for possession or execution of order of possession is not carried out within the stipulated period of limitation, the right of the bhumidhar shall stand extinguished and person in continuous possession of the property shall acquire bhumidhari right on expiry of period of limitation. 12. 12. In my humble opinion, the language of Section 210 of the U.P.Z.A. & L.R. Act is akin to Section 27 of the Limitation Act, which also provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. 13. Therefore, even if it is presumed for a moment that Hira Lal has ever executed a sale deed in favour of Kedar Datt and Shankar Datt, however, fact remains that from the date of alleged sale deed dated 19.04.1973 till day, name and possession of Hira Lal and after his death, his son Jagdish Chandra and after the death of Jagdish Chandra, his legal heirs remained recorded. There is no evidence to prove that petitioners of both the petitions ever remained in possession after 1973 i.e. after the alleged sale deed. Therefore, alleged right and title of the petitioners stood extinguished after the expiry of period of twelve years from the date of sale deed. Moreover, although factum of compromise dated 04.05.1981 is in dispute, however, fact remains that compromise decree dated 04.05.1981 was also not put for execution for long fourteen years. Therefore, alleged right pursuant to alleged compromise decree also stood extinguished on expiry of statutory period of limitation. Therefore, petitioners have absolutely no right over the property in question and LRs of the respondent no. 1 Jagdish Chandra are the bhumidhars in possession of the property in question. 14. Consequently, both the petitions fail and are hereby dismissed. 15. All the CLMA Nos. 11209, 11210, 11211 and 11212 of 2013 also stand disposed of accordingly.